SMITH v. HARTIGAN

United States District Court, Northern District of Illinois, E.D

February 4, 1983

MARY AND JOHN SMITH, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, AND AARON LIFCHEZ, PLAINTIFFS,v.NEIL F. HARTIGAN, ATTORNEY GENERAL OF THE STATE OF ILLINOIS; AND RICHARD M. DALEY, STATE'S ATTORNEY OF COOK COUNTY, ILLINOIS, IN THEIR OFFICIAL CAPACITIES, DEFENDANTS.

The opinion of the court was delivered by: Flaum, District Judge:

MEMORANDUM OPINION

This matter is before the court on plaintiffs' consolidated
motions for preliminary and permanent injunctions pursuant to
Fed.R.Civ.P. 65 and for summary judgment pursuant to Fed.R.Civ.P.
56. For the reasons stated below, the motions are denied and this
cause is dismissed for lack of subject matter jurisdiction
pursuant to Fed.R.Civ.P. 12(b)(1).

In this action, the plaintiffs*fn1 challenge the
constitutionality of a provision in the Illinois Abortion Law of
1975, as amended. Ill.Rev.Stat. ch. 38, § 81-21 et seq.
(1981) ("the Act"). The plaintiffs John and Mary Smith*fn2 are a
married couple who have unsuccessfully attempted to have a baby
and who now wish to attempt conception through in vitro
fertilization. Plaintiff Aaron Lifchez ("Lifchez") is a medical
doctor and a member of the Department of Obstetrics and
Gynecology at Michael Reese Hospital in Chicago, Illinois.*fn3
He is a physician to Mary Smith and has determined that Mary
Smith is unable to conceive because of irreversibly damaged
fallopian tubes. Lifchez has concluded that in vitro
fertilization*fn4 is the only means by which Mary Smith has a
chance of conceiving a child and he states that Michael Reese
Hospital has facilities and physicians who are ready and willing
to facilitate the in vitro fertilization process. However,
because of what is believed to be an Illinois statutory
prohibition of in vitro fertilization, Lifchez states that
responsible physicians and institutions cannot offer that medical
service to people such as Mary Smith. The statute to which
Lifchez refers and which is challenged here is section 6(7) of
the Act. That section provides:

Any person who intentionally causes the
fertilization of a human ovum by a human
sperm outside the body of a living human
female shall, with regard to the human
being thereby produced, be deemed to have
the care and custody of a child for the
purposes of Section 4 of the Act to
Prevent and Punish Wrongs to Children,
approved May 17, 1877, as amended,
[Ill.Rev.Stat. ch. 23, § 2354 (1981)]
except that nothing in that Section shall
be construed to attach any
penalty to participation in the performance
of a lawful pregnancy termination.

Plaintiffs argue that this court must declare that the in vitro
provision is unconstitutional because it violates the first,
fourth, ninth and fourteenth amendments. This argument is based
upon two general contentions:*fn6 the in vitro provision
violates the plaintiffs' fundamental right to privacy and the in
vitro provision is void for vagueness. With respect to their
privacy right argument, plaintiffs maintain that several Supreme
Court decisions establish certain principles concerning protected
privacy interests. Relying on these principles, plaintiffs
contend that the in vitro provision impermissibly infringes on
their privacy interests because the provision prevents them from
effectuating their only hope for conceiving a child. Plaintiffs
also raise several matters which they contend are inadequately
defined in the in vitro provision. Their attack focuses on the in
vitro provision's imposition of custodian status on those who
perform the fertilization. Plaintiffs contend that the nature of
the custody is "wholly open-ended" and not defined in the statute
or case law. Specifically, plaintiffs maintain that it cannot be
determined exactly who in the in vitro process has custody
because the in vitro provision fails to recognize the team nature
of the process. Plaintiffs also complain of the in vitro
provision's use of the term "causes" fertilization because it is
unclear who within the medical team causes fertilization. In
addition, plaintiffs contend that the in vitro provision does not
define how long the custody status continues. Finally, plaintiffs
argue that the in vitro provision provides no standard of conduct
governing those who have custody. For these reasons, plaintiffs
contend that the in vitro provision fails to give Lifchez and
other health care providers adequate notice of prohibited conduct
and that it therefore should be struck down.

With respect to plaintiffs' privacy arguments, defendants state
that "plaintiffs' situation presents the `strongest case for a
fundamental right to [in vitro fertilization]'". Def. Mem. at 25
(citation omitted). However, because defendants conclude that the
in vitro provision does not apply to plaintiffs, defendants argue
that plaintiffs have no standing to attack the statute and it is
unnecessary to address the issue of whether plaintiffs have a
fundamental right to employ in vitro fertilization for
procreative purposes. The defendants' conclusion that the in
vitro provision does not apply to these plaintiffs is dependent
upon the defendants' interpretation of the statute presented in
their response to plaintiffs' vagueness arguments.

Briefly summarized, the defendants' interpretation of the in
vitro provision is as follows. Defendants contend that the
provision is meant to harmonize several different rights and
interests. It both permits in vitro fertilization and preserves
the constitutional rights of women who have become pregnant
either naturally or through in vitro fertilization to terminate
their pregnancies. At the same time, the in vitro provision
"protects the State's interest in human life by prohibiting
wilful exposure of embryos to harm, [such] as by destructive
laboratory experimentation." Def. Mem. at 9. Defendants submit
that the only duty imposed by the provision is to refrain from
wilfully endangering or injuring a conceptus. They argue that
this duty is not impermissibly vague because of several
limitations on that duty. First, the duty contains a scienter
requirement since any offending party must "wilfully" endanger or
injure. Second, the duty is temporally limited because, according
to defendants, reasonable statutory construction compels the
conclusion that the duty ceases with the reimplantation of the
conceptus. Third, the duty does not lack a standard of care
because the plain language of the statute and relevant case law
support the conclusion that only "wilful abuse, mutilation, or
extermination of the conceptus by a person subject to the in
vitro provision would be actionable." Def. Mem. at 20. Fourth,
the class of persons upon whom the duty is imposed is limited by
a scienter requirement, i.e., those who "intentionally" cause
fertilization. Finally, the entire in vitro provision is limited
by a savings clause which provides that no penalty will attach to
participation in the performance of a lawful pregnancy
termination. Defendants state that this clause "saves the right
to decline to reimplant an embryo under appropriate
circumstances. . . ." Def. Mem. at 21-22. In this respect,
defendants maintain that "`pregnancy termination' can only refer
to non-reimplantation of an embryo conceived in vitro with the
intention of continuing the pregnancy in the womb, until delivery."
Def. Mem. at 24. Based on that construction of the statute,
defendants conclude that "to determine that [a] five-to-seven day
old, non-viable conceptus should not be reimplanted for any
medical reason whatsoever is simply to participate in a lawful
pregnancy termination." Def. Mem. at 26. With these
interpretations of the statute and the plaintiffs' description of
the in vitro fertilization process to be used, defendants submit
that there are no rights in conflict here and that the in vitro
provision "does not fetter the plaintiffs' freedom to engage in
the procedure they describe. . . ." Def. Mem. at 31-32. Therefore,
defendants contend that plaintiffs lack standing to challenge the
in vitro provision and that the court should dismiss this action
as failing to present a case or controversy under article III of
the Constitution.

As a threshold matter the court must address the contention
that plaintiffs lack standing in this case, because if they do,
no further issues need be addressed.
This issue, however, is not difficult to resolve. The plaintiffs'
pleadings clearly set forth sufficient allegations concerning an
adversary stake, injury in fact and assertion of personal rights
to meet the tests of Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197,
45 L.Ed.2d 343 (1975), and Doe v. Bolton, 410 U.S. 179,
93 S.Ct. 739, 35 L.Ed.2d 201 (1973). Thus, the plaintiffs are
proper parties to raise the constitutional challenge here. The
more critical issue to resolve is whether their challenge
presents a case or controversy under article III of the
Constitution in light of defendants' interpretation of the in
vitro provision because the judicial power of this court as
defined in article III "is not an unconditioned authority to
determine the constitutionality of legislative or executive acts.
The power to declare the rights of individuals and to measure the
authority of governments . . . `is legitimate only in the last
resort, and as a necessity in the determination of [a] real,
earnest and vital controversy.'" Valley Forge Christian College
v. Americans United for Separation of Church and State, Inc.,
454 U.S. 464, 471, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982)
(citation omitted).

The plaintiffs argue that the defendants' position is only a
legal argument which is both incorrect and not binding on
defendants.*fn12 The court, however, does not accept that view
of defendants' pleadings. These defendants are charged with the
constitutional and statutory responsibility of enforcing and
initially interpreting the laws of Illinois. Ill. Const. art. V,
§ 15; Ill.Rev.Stat. ch. 14, §§ 4 and 5. Moreover, the
Illinois Attorney General is specifically charged with the duty
of rendering written opinions upon "constitutional and legal
questions". Ill.Rev.Stat. ch. 14, § 4. Although these
opinions do not have the binding force of law, there is a long
history of their use in this State which suggests that they are
far more than the personal reflections of the current office
holder. Indeed, the opinions can have collateral effects for
state officers who rely on or ignore them and the opinions are
accorded considerable weight in the courts when a question of
first impression is raised regarding the construction of an
Illinois statute. While the Attorney General's views presented
here are not in the form of a written opinion issued pursuant to
Ill.Rev.Stat. ch. 14, § 4, they are given in response to a
vigorous constitutional challenge in federal court and they will
be accorded considerable weight by this court. See generally City
of Springfield v. Allphin, 74 Ill.2d 117, 23 Ill.Dec. 516, 522,
384 N.E.2d 310, 316 (1978); Scott, The Role of Attorney General's
Opinions in Illinois, 67 Nw.U.L.Rev. 643 (1972).

There are currently no Illinois court decisions interpreting
the in vitro provision and, furthermore, the defendants'
interpretation of the provision involves in part the
interpretation of other Illinois statutory and case law. In these
circumstances, the court cannot turn from nor disregard the
defendants' interpretation of the statute, especially since that
interpretation "might avoid in whole or in part the necessity for
federal constitutional adjudication, or at least materially
change the nature of the problem." Bellotti v. Baird, 428 U.S. 132,
147, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844 (1976). Adoption of
defendants' construction of the statute provides several
significant limitations on the scope of the in vitro provision.
Defendants interpret the period of time for which "care and
custody" are imposed by the provision to end when the conceptus
is reimplanted. Thus, according to defendants, all
responsibilities attending the "care and custody" status are
terminated when the conceptus is reimplanted. Further, defendants
state that if a conceptus is not reimplanted for medical reasons,
such a non-reimplantation would be a lawful pregnancy termination
and therefore would not be punishable under the Act to Prevent
and Punish Wrongs to Children. Most critically, defendants
represent, based on their interpretation, that the in vitro
procedure plaintiffs wish to follow does not violate the statute
so that no prosecution need be feared. Thus, the only potential
issue raised for these plaintiffs under defendants' construction
of the statute concerns the use of the technique of
superovulation*fn13 to fertilize of multiple embryos. Defendants
suggest that the legal issues surrounding multiple fertilizations
are complicated, but defendants do not consider those issues
relevant here because plaintiffs do not indicate that the
superovulation technique will be used by them for the achievement
of multiple fertilizations. Def. Mem. 7-8. In reply, plaintiffs
merely state that Lifchez' affidavit neither excludes nor includes
a procedure using multiple fertilizations. On this state of the
pleadings the court concludes that this issue is not before it.

Accordingly, plaintiffs' consolidated motions for preliminary
and permanent injunctive relief and for summary judgment are
denied and this cause is dismissed for lack of subject matter
jurisdiction.

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